Forces for Compliance with the Law of War

Third Session Friday, April 24, 1964, at 9:15 a.m.

Panel: Compliance during Hostilities

The session reconvened at 9:15 a.m. in the East Room of the Mayflower Hotel. Rear Admiral Robert D. Powers, Jr., Deputy Judge Advocate of the Navy, presided. Admiral Powers introduced the members of the panel, Messers Richard

R. Baxter, Harvard Law School, Benjamin Forman, Assistant General Counsel, Department of Defense, Gordon Baldwin, Professor of International Law, Naval War College and University of Wisconsin Law School, and Colonel Howard

S. Levie, St. Louis University School of Law, laying particular stress on the military experience of each.

Admiral Powers observed that the subject of compliance during hostilities receives little notice probably because it has little publicity or propaganda value. As in civil life, the reported cases deal with non-compliance.

Forces for Compliance with the Law of War By R. R. Baxter

Harvard Law School

It is orthodox doctrine that two direct sanctions, in the conventional sense, exist to secure compliance with the law of war. One of these is the punishment of violators of the law as war criminals. The other, as set forth in Convention No. IV of The Hague, is the payment of “compensation,” or what would normally be referred to as “damages” or “reparations.”

Since the law of war speaks primarily to individuals and it is individual persons who cause harm to others through failure to comply with the law, it is important to consider what minatory or deterrent effect the possibility of prosecution by the enemy may exercise upon the mind of a member of the armed forces or of a civilian. For purposes of simplified analysis, these persons may operate under the authority of a state which is basically law-abiding or one which is basically law-defying, although we must recognize that there will be many gradations in these qualities. By a “law-abiding” or a “law-defying” state I mean one which is basically disposed toward compliance with the law of war as a matter of national policy or one which, on the other hand, is neglectful ofthe law ofwar or disposed to violate it. We might then imagine seven situations in which the relative military advantage of two states, whether law-abiding or law-defying, might predispose an individual in one or the other state to comply with the law or to violate it:

• 1. If one state is law-abiding and the other is law-defying, the likelihood of victory by the law-abiding should not shake the adherence to law of persons serving the state which is generally law-abiding. The prospect of treatment in conformity with law may suggest to persons serving the law-defying state that a meaningful distinction will be made between those, on the one hand, who comply with the law and will be treated in conformity with the treaties and customary law on the subject, and those, on the other hand, who violate the law and will be treated as war criminals. This will be an inducement to compliance, but it may be counter-balanced by the desire of persons serving the law-defying state to resort in desperation and panic to measures which are criminal.
• 2. If one state is law-abiding and the other is law-defying, the probable defeat of the law-abiding state should take all pressures to obey the law off the individuals serving the law-defying state, since they will know that the law-abiding state will be powerless to punish. Even persons belonging to the law-abiding state may have their devotion to law shaken by the prospect of defeat and may take last-ditch measures which violate the law. The fact that the consequences of defeat will mean mistreatment, whether the individual has complied with the law or violated it, removes much of the inducement to obey the law. The least of the individual’s worries in defeat would be whether he would be treated as a war criminal.
• 3. In a war between two law-abiding states ending in victory by one or the other, the pressures of the law of war would operate in their normal way, and fear of being tried as a war criminal would exercise a deterrent effect upon the mind of an individual otherwise disposed to step out of line.
• 4. Compliance with the law in a war between two law-defying states needs no further elaboration.
• 5. The fifth, sixth, and seventh situations are wars which will end in draws. If both states are law-abiding, fear of punishment by the opposing forces may exercise a salutary effect upon the minds of fighting men and civilians.

• 6. On the other hand, if both states are law-defying, the forces of both will be disposed to violate the law, as would happen in Situation 4, where the war between two law-defying states would end in victory for one and defeat for the other.
• 7. If the war which is to end in a draw is between a law-defying state and a law- abiding state, it is probable that there will be no prosecutions for war crimes at all. The law-abiding state will be reluctant to try personnel of the law- defying state because of the fear of reprisals, perhaps through perverted war crimes proceedings against captured personnel of the law-abiding state. The law-defying state may be reluctant to stir up trouble by prosecutions, quite aside from its hypothesized lack of interest in securing compliance with the law. Korea is the clear example of this relationship of the parties. Under the Armistice persons charged with or suspected of war crimes were simply repatriated with other captured and detained personnel.

In all of these situations, uncertainty about the outcome of the war dum bellum fervet will normally cause a state to move cautiously. If war criminals are to be prosecuted in conformity with law and not for terroristic, propagandistic, or jingoistic reasons, these proceedings can be expected to take place only as part of the tidying-up process at the end ofwar. So long as the successful prosecution ofthe war bulks largest in the minds of those who are fighting it, fear of criminal proceedings cannot be expected to carry much weight.

This greatly simplified analysis of the deterrent force of criminal prosecution indicates that this sanction will not operate effectively in the majority ofthe types of conflict which have been mentioned. Can more be expected of the duty to pay compensation for violations of the law?

The juridical element in reparations has become blurred, initially by additions to and subtractions from the heads of damages which could be taken into account, and subsequently by the assessment of reparations according to ability to pay and the economic needs of the debtor and creditor. The reparations collected at the end of the first World War could still be identified as being in part attributable to various categories of violations of the customary and conventional law of war, but there were added to these sums payments for war damages generally and for conduct of the defeated Powers which did not constitute violations of the law of war. If reparations had been collected at the end of the second World War in an amount sufficient to recompense those states which had been victims of aggression for all of the losses which they had sustained through a war illegal in its inception and in its execution, the former enemy states could never have recovered from the blow. Moreover, the exaction of reparations became, in light of political changes after the war, inconsistent with the objectives of those Powers who were anxious to bring about a healthy reintegration of the former enemy nations into the international community. It thus has happened that reparations, ifcollected at all, are no longer measured as compensation for past wrongs. In any event, the prospect that damages might have to be paid by his nation after the war could at no time have exercised any appreciable effect on the mind of the individual otherwise disposed to violate the law of war, and it is doubtful whether the possible necessity of paying reparations ever had much of an effect on decision-making by states themselves.

It is sometimes said, with particular regard to the law of peace, that that ephemeral pressure, the force of public opinion, is the ultimate sanction lying behind international law. Even if this be so in time of peace, the scope for the operation of this force is severely circumscribed in time of war. Public opinion does not have the necessary facts upon which to operate, since information is denied through censorship and distorted through propaganda. Even if it could operate freely, its coercive force, although varying from case to case according to a belligerent’s desire to cultivate favor in a particular country, would in general be slight. When vital interests of the state are thought to be at stake, pleasing others does not appear to be an important end sufficient to alter the pattern of conduct of the state. If the pressure is felt at all, it operates only indirectly upon the individual, whose pattern of conduct derives from the state which he serves. It is the government of that state which will sense the pulses of public opinion and transmit them into stimuli operating on the minds of individuals. The sanction, if this it be, thus loses in immediacy.

If, then, what are generally regarded to be sanctions for the enforcement of the international law of war are seen to be relatively ineffective and lacking in any real coercive force, it becomes necessary to consider what forces of contemporary significance may lead states and individuals to comply with the law.

It is perhaps only a tautology to say that there will be a high level of compliance with the law by individuals serving a state which is itself generally law-abiding and law-respecting. The individual is led to comply with the law because he is threatened with punishment under the civil or military law of his own state if he does not. The sanction is effective because it is immediate in operation, in the sense that prosecution will not await the outcome of the war, and under familiar law and legal institutions which enhance the general acceptability of punishment. If the punishment comes from within the family instead of from an outsider, it will lose the stigma of having been motivated by a desire for revenge or of having been victor’s justice, as the charge runs against prosecutions by the enemy. Often overlooked by those concerned with the incidence and punishment of violations of international law is the fact that great numbers of such crimes are routinely dealt with under the substantive municipal law of the state whose national has committed the offense. At the same time, trial of persons for war crimes qua violations of municipal law rather than qua violations of international law raises problems about the capacity of municipal legal systems to integrate, either directly or by analogy, the great range of crimes which may be committed in violation of the law of war, some of which lack any real counterpart in municipal law.

It is a corollary of what I have just said about trial of war crimes as violations of municipal law that the discipline of forces sometimes, although not universally, reflects itself in their level of compliance with international law. As more and more so-called “volunteers” from China, actually regular troops, entered the Korean War, the treatment of prisoners of war improved somewhat over the conditions which had obtained when the prisoners were being held by the poorly led, poorly organized, and poorly disciplined North Korean troops. Killings by Congolese forces in the course of the civil war were often attributable to an indiscriminate firing of weapons which would not have been tolerated in any well-trained army. Except if the purpose be to terrorize the civilian population, which in itself lacks military effectiveness, looting, killing, and raping by members ofthe forces interfere with the more important business of fighting the war and are forbidden by military codes for that reason as well as others. But an easy assumption that well-disciplined troops will automatically comply with the law of war is rebutted by the conduct of the German and Japanese armed forces during the second World War, when rigid discipline and widespread violation of the laws of war seemed to march hand in hand. Even disciplined troops in the heat of battle may lose control of themselves. General Marshall in Night Drop records a case in which American paratroops in Normandy killed all of a detachment of Germans in a farm and then slaughtered all ofthe horses, cows, and sheep they found there. Nevertheless, the general discipline of forces may in some cases predispose troops to comply with the law.

The requirement of the Geneva Conventions of 1949 that the armed forces of each signatory be schooled in the provisions of the Conventions has the worthy purpose of integrating training in the law of war into the regular military training of troops. Some countries, such as the Federal Republic of Germany and Yugoslavia, have particularly fine programs of instruction. There is reason to suppose that not enough is done to indoctrinate the members of the armed forces of the United States. If states undertook, as they do with respect to international labor conventions, annually to report their compliance with the training requirement of the four conventions, there would be some stimulus to keeping the standards up. It would take no amendment of the conventions for the International Committee of the Red Cross to secure pledges of yearly reporting from the present parties to the conventions. A yet more daring step could be taken if the parties also allowed the Committee to examine troops chosen at random on their knowledge of the conventions. To put it briefly, the man who is well schooled in the conventions will find it harder to violate them, even though he is told to do so, than the man who has only a shaky knowledge of their contents.

The possibility of third-party protection and inspection in time of war offers some hope of being a further force making for compliance. These duties fall in the first instance to the Protecting Power, but the International Committee of the Red Cross also has a role to play, albeit one of only limited scope. The I.C.R.C. may undertake humanitarian activities with the consent of the belligerents and may assume the functions of a Protecting Power if the belligerents cannot agree upon a state or an organization to perform that task. Anyone familiar with the admirable impartiality and zeal of the International Committee in assisting the victims of innumerable recent conflicts—activity which passes very largely unnoticed by the public—might well ask why the Committee should not be entrusted with wider responsibilities in major international conflicts to which the conventions would apply. It is unfortunate that states are unwilling to give full recognition to the special position of the I.C.R.C. as the guardian of the conventions. The victims of war deserve their own spokesman and their own advocate.

Major problems of securing compliance with the law of war have arisen out of the enhanced importance assumed by two types of warfare since the second World War. The first of these is civil wars, the second, operations by United Nations forces.

Since civil wars are by definition internal conflicts, international law has little to say about how they should be fought, in the absence of that participation by other states which would convert them into international conflicts. A common Article 3 of the Geneva Conventions of 1949, an innovation in the law of war, provides a brief “bill of rights” for application by both parties to an “armed conflict not of an international character,” notably in civil conflicts. The legal problem about such a provision is that, while a government can bind itself, it cannot bind that “party to the conflict” which is in rebellion against the lawful government. The very fact that the insurgents are challenging the authority of the government of the state is in itself an obstacle to their complying with any obligation purportedly assumed on their behalf by that government. The lack of reciprocity which may result will make the more difficult the imposition of any limits on violence. Since the majority of contemporary conflicts are in whole or in part internal, the maximum of legal ordering which can be expected in a great number of conflicts is the one article of the conventions which itself rests upon weak legal grounds. Of course, the parties may agree to bring the conventions as a whole into operation, but one starts from the presumption that only Article 3 is operative in an “armed conflict not of an international character.”

The problem about United Nations forces is somewhat different and cannot be fully canvassed here. I do not propose to enter into the problem, which was discussed several years ago at an annual meeting of this Society, whether the United Nations forces should conform to the Geneva Conventions at all, and I will proceed on the assumption that it is desirable that they should. During those conflicts in which the United Nations has participated, from the Korean War onward, the organization has shown its willingness to abide by the Geneva Conventions of 1949, which are essentially humanitarian in nature. With respect to these treaties at least, the dispute about the applicability of the law of war to such forces has become altogether academic.

Nevertheless, problems remain. Contingents may be drawn from various states having differing treaty obligations. The United Nations itself is not and cannot become a party to treaties open only to states. Even if it were to become a party, it could not, under the present command structure for U. N. forces, exercise a disciplinary control over its troops commensurate with its responsibilities under international law. A partial solution which has been suggested, although one not fully responsive to this last difficulty, is that the United Nations should declare its willingness to assume legal obligations under the conventions and demand similar compliance from the hostile forces which it might face.

Actually, the problems of civil conflict and, at the opposite extreme, the use of force on behalf of an international organization might yield to a common solution. A declaration could be adopted by the General Assembly—it would be hoped by a unanimous vote—that certain principles of the law of war, notably of the Geneva

Conventions of 1949, are of universal applicability without regard to the nature of the conflict or to the specific treaty obligations which the parties might have assumed. A declaration of this sort would resemble the declarations on human rights, on permanent sovereignty over natural resources, on colonialism, and on the legal principles governing the use of outer space, which have already been adopted. It would go beyond the generality of declarations in recognizing that all persons under all circumstances have a legal obligation to comply with the basic humanitarian principles of the law, an obligation which in strict law would be in part affirmed.

Why, it may be asked, should such a declaration be confined to certain selected principles of the Geneva Conventions of 1949 and of the rest of the humanitarian law? Should not the Geneva Conventions of 1949 be made applicable in their entirety to United Nations forces and to government and rebel troops in a civil war? My purpose is not to suggest the dropping of the many desirable matters of detail in these agreements but rather to smooth the way to compliance. If the conventions are to be made universal law, it would be unwise to attempt too much too soon, to make about 400 articles, many of them highly technical, into universal law by a simple vote of the General Assembly. At the same time it would be unwise to have the principles adopted degenerate into the ambiguous platitudes of the principles of “peaceful co-existence” or of “friendly relations and co-operation among states.” One of the present obstacles to observance of the treaties must surely be the difficulty of having the common soldier assimilate the contents of the conventions, which in their totality are probably longer and perhaps more complex than any existing military code. The International Red Cross and various governments have done their best to provide simplified instruction in the law, but perhaps the time has come for a clear, concise, authoritative set of rules, freed from the rigidities of treaty law. I must emphasize that such a declaration would not replace the conventions. Their terms would continue to bind, in all their detail and within the conditions imposed by their terms and by reservations, those nations which had become parties to them.

This necessarily brief consideration of some of the sanctions which are thought to make for compliance with the law of war and of some of the forces which do make for compliance does not exhaust the possibilities. Only a few years ago, informed persons would have laughed at the possibility that prisoners of war might be ransomed, as had happened centuries ago, but we have seen a revival of that practice in the ransoming of Cuban prisoners held by Cuba after the invasion of that country. Perhaps the possibility that prisoners of war can be the source of economic advantages may in other instances lead to a closer approximation of the standard required by the law. Those of us who are concerned with the law of war may not have done enough to relate the law to the ethical standards and local values of the vast diversity of cultures to which the law may have application. There can be little doubt that there may be other potential forces for compliance which should be cultivated and given space in which to grow.

We live in an era in which armed conflict occurs no less frequently than in the past, despite the peace-keeping activities of the United Nations. This is hardly the time to neglect the law of war or the means that are at our disposal for securing obedience to it.

After thanking Mr. Baxter, Admiral Powers noted, with respect to the education of American military forces in the principles of the Geneva Conventions, that all the United States military academies teach international law. Furthermore, in each Judge Advocate General’s Office, there is an International Law Division which works closely with officers directing operations.

Admiral Powers referred to a statement by Professor Saul Mendlovitz at the meeting on “Appropriate Compliance Objectives,” on Thursday, that law did not enter into the decision-making or the implementation of policy in the Cuban quarantine crisis. He declared that there were at least four persons present at this meeting—Mr. Forman, Captain Joseph B. McDevitt, Captain Kenny, and himself—who were certain that their four days of concentrated research in international law at that time had not been in vain, and were also certain that international law had a part in the decision and in the implementation of the quarantine.